Bribery Bill [HL]

My Lords, I declare an interest as a member of the Constitution Committee and of the Joint Committee on the draft Bill and as a former law officer who was involved in a number of major bribery and corruption cases during my period in office. I strongly support the Bill in principle, but it is important that we scrutinise carefully its detailed provisions. These cover: first, the law of bribery as it is to apply in the United Kingdom; and, secondly—this is particularly important—the law that in future is to apply to the bribery of foreign public officials. There is quite properly a strong desire, led by bodies such as the Corner House and Transparency International, to seek to do everything that we can to stamp out the widespread bribery that exists in substantial areas of foreign trade and commerce. But this is a complex area. If the new law is to be successful, it must be drafted with as much clarity as possible and it must be seen to be fair. Juries are on the whole not at all reluctant to convict for the very nasty criminal offences generally known as bribery and corruption. As the Law Commission has said, in general 95 per cent of the public have a good understanding of what these words mean. The Director of Public Prosecutions confirmed in writing to the Joint Committee on the draft Bill that the state of the current law has not in the past 15 years caused any serious problems in bringing prosecutions. I know from my own experience going back to 1979 that the same was true during that period. The main problem in prosecuting bribery has never been the law; rather, it is the obtaining of the necessary evidence. None the less, during my period in office, some very serious cases of bribery were prosecuted successfully. The first of the Guinness cases, involving Messrs Saunders, Ronson, Parnes and another, was one example of massive bribes. Other cases involved a series of carefully planned bribes in relation to contracts for the supply of expensive equipment in connection with the production of North Sea oil. Some supporters of the Bill believe that the fulfilment of our OECD obligations, which I strongly support, would produce a radical change. Clause 7 of the Bill imposes a duty on commercial organisations to prevent bribery. This will, I think, have a significant beneficial effect. I was personally impressed by the seriousness with which the duty to prevent bribery seemed to be taken by the representatives of major businesses who appeared before the Joint Committee. But unnecessary or undue complexity, particularly coupled with any sense of unfairness, runs the risk of making offences that in concept, although usually not in execution, are quite simple unnecessarily difficult to prove. I will highlight briefly some of the key issues on which we should focus. The first—I feel that I have an uphill task in making this point—is the complexity of Clauses 1 to 5 of the Bill and the meaning of "improper", which has been chosen as the key word to summarise the necessary criminality. I say this with some diffidence, because no one has greater respect for Lord Slynn; I was his first pupil. He had an immensely difficult task and the law commissioners worked extremely hard on this, for which I pay them tribute. However, I share the view of some leading practitioners at the Bar that these clauses are complex and difficult to unravel. The word "improper" in the dictionary has a large number of meanings that fall well short of criminality—"abnormal", "incorrect", "unsuitable", "ill adapted", "unbecoming", "indecorous" and "indecent" are all examples. The noun "impropriety" includes "inappropriateness" and "unseemliness", as well as the more pertinent "morally improper conduct". There is a serious argument about whether the concepts of corruption and/or dishonesty should be a requirement of the offence. I think that we need to revisit that carefully. In one of the leading cases, the Lord Chief Justice, though hesitating over whether dishonesty was essential, handed down a ruling that the conduct must at least have been the "product of an evil mind", which seems to be a distinction without a great deal of difference. Juries understand well what is meant by "dishonesty" and, indeed, by "corrupt". Whatever the Bill says, they will be reluctant to convict an individual unless they are satisfied that the underlying conduct was dishonest or corrupt. Provided that the prosecution can marshal and present the basic facts, the dishonesty or corruption of the conduct usually sticks out like a sore thumb. There are alternative solutions to the present drafting, at which I hope the Government will look constructively and, if we can do a good job, perhaps favourably. One is the Australian solution, which will be well known to the department. It is not as concise as the present law in England, but it sets out the requirements very clearly and has the support of practitioners with a deep knowledge of the subject. The other is to seek to produce—this may involve some rather hard Christmas work—a shorter opening clause or clauses, amalgamating the provisions of the common law offence of bribery and the statutory provisions of the Acts of 1889, 1906 and 1916, each as amended by succeeding Acts and finally by Section 12 of the Anti-terrorism, Crime and Security Act 2001. There is a great deal of overlap in the wording of those Acts and consolidation is a proper and potentially useful approach. Other matters on which we must focus are the absence of the defence recommended by the Law Commission at pages 128 to 136 of its October 2008 report, summarised at paragraph 7.49, to the effect that the person alleged to have offered the bribe has a defence if they show on the balance of probabilities that they reasonably believed that they were legally obliged or legally permitted to do so by the law of the foreign country in question. That may worry some colleagues and noble Lords who were on the Joint Committee; we had some discussion on it, but it deserves to be revisited. Should such a law be a written law? I am inclined to think that it should, but this is the real world. Some of the more sophisticated countries where this kind of corruption has taken place will probably find it only too easy to produce a convenient written law, but some of the less sophisticated countries may not produce any written law, but may indulge in practices that put the businesses in question in real difficulties. Maybe guidance will help; maybe it will not. I agree strongly with my noble and learned friend Lord Mackay of Clashfern about the role of the Attorney-General. Noble Lords might expect me to say that. At present, the Attorney-General must approve all such prosecutions. There are not so many that it is an undue burden and I believe that it is beneficial to the proper control by government in its very broadest sense. I draw the distinction between government and the prosecuting authorities, because the Government do not prosecute; it is the independent prosecuting authorities who prosecute. However, it is important that somebody answerable in this House or the other place should have ultimate responsibility for that and should carry it out in as good a manner as humanly possible. Under the Bill, any Crown prosecutor could bring a case. Much more supervision is needed than that. It is not just any Crown prosecutor; it is prosecutors for local authorities and the other major prosecuting authorities. Your Lordships’ Select Committee on the Constitution made a number of points about the security services under Clause 12. Those points have already been extremely well made by other noble Lords, so I will not repeat them, but this is something that has to be looked at with great care. In my opinion, there must be a law officer or a Minister who is answerable to Parliament. Finally, we need to tackle the problem of debarment under EU law of any business convicted of bribery or of failing to prevent bribery from ever again competing for an international contract. The United States has been praised, to a great extent rightly, for leading the way in 1977 with its Foreign Corrupt Practices Act, but it has since put together a pretty elaborate scheme of pre-contract clearance. Germany, too, has put in quite an elaborate system: if someone looks like being convicted, you then put the case into suspended animation and in a sense put them on probation so that they do not get a conviction and are not prevented—so long as they behave themselves in the future—from continuing to compete. It is important that there should be a level playing field if we are to carry the confidence of the business community. Indeed, the noble Lord, Lord West, accepted that point when I made it in my speech on the Loyal Address. I hope that the Government will be able to say more about it in the course of our proceedings. I well understand the Government’s desire to pass this Bill. I shall do everything that I can constructively to help and, I hope, improve it without delaying it. But a flawed Bill could do more harm than good. I wish it well and look forward to playing a part in the future.